AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 78

WITHDRAWAL OF MOTION PURSUANT TO #80 . . . . . MOTION for Protective Order by PUBLIC.RESOURCE.ORG, INC. (Attachments: #1 Declaration of Andrew P. Bridges In Support of Public.Resource.Org, Inc.'s Motion for Protective Order, #2 Exhibit A - Plaintiffs' Second Requests for Production of Documents, Things and Electronically Stored Information, #3 Text of Proposed Order Granting Defendant's Motion for Protective Order [Dkt. 78])(Bridges, Andrew) Modified on 3/2/2015 (td, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,

Case No. 1:13-cv-01215-TSC-DAR
PUBLIC.RESOURCE.ORG, INC.’S
MOTION FOR PROTECTIVE ORDER

Filed:

August 6, 2013

Plaintiffs/Counter-defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.

Pursuant to Federal Rule of Civil Procedure 26(c), Defendant-Counterclaimant
Public.Resource.Org (“Public Resource”) respectfully moves the Court for a protective order
staying the depositions of Public Resource and Carl Malamud, currently scheduled for February
26 and 27, 2015, respectively, until the Court has decided Public Resource’s pending motion to
consolidate this action with American Educational Research Association, Inc. v.
Public.Resource.Org, Inc., No. 1:14-cv-00857-TSC-DAR (filed May 23, 2014) (the “AERA
Action”) for purposes of discovery.1 Because the dates noticed for these depositions are
February 26 and 27, Public Resource respectfully requests expedited treatment of this motion.

1

See Defendant-Counterclaimant Public.Resource.Org, Inc.’s Motion to Consolidate for the
Purposes of Discovery, Am. Educ. Research Ass’n, Inc. v. Public.Resource.Org, Inc., No. 1:14cv-00857-TSC-DAR, Dkt. No. 33 (Jan. 29, 2015) (the “Consolidation Motion”).

Pursuant to Rule 26(c)(1) and Local Rule 7(m), the parties have met and conferred, and have
failed to reach agreement on this dispute. On February 18, 2015, Public Resource offered a
compromise to avoid this motion but was unsuccessful.
ARGUMENT
Federal Rule of Civil Procedure 26(c) authorizes the Court to issue orders “to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.
R. Civ. P. 26(c). The moving party bears the burden of showing that there is “good cause” for
the issuance of the order. Id. “Good cause” is established when the movant “articulates specific
facts to support its request” and “demonstrate[es] specific evidence of the harm that would result
to plaintiff . . . .” Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001).
Public Resource is a defendant in two separate lawsuits involving substantially identical
issues of law and many of the same issues of fact. Public Resource, a non-profit advocate for
public access to the law, posted on the Internet standards that have been incorporated by
reference into the law and that have the force of law. Plaintiffs in this action (the “ASTM
Plaintiffs”) and plaintiffs in the AERA Action (the “AERA Plaintiffs”) both allege that Public
Resource’s activities infringe certain copyrights and trademarks. The ASTM Plaintiffs and the
AERA Plaintiffs are communicating with each other and sharing information about their
respective cases. Moreover, the AERA Plaintiffs have requested that Public Resource produce in
the AERA Action all discovery responses, deposition transcripts, and exhibits from this ASTM
Action. Declaration of Andrew P. Bridges (“Bridges Decl.”) ¶ 2.
Nevertheless, and despite the coordination between the ASTM and AERA Plaintiffs, each
set of plaintiffs insists on separate depositions of Carl Malamud, both in his capacity as an
individual, and in his capacity as the sole employee and representative of Public Resource
pursuant to Rule 30(b)(6). In other words, the ASTM and AERA Plaintiffs insist on subjecting
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Mr. Malamud to four full days of testimony. Public Resource anticipates that much of the
deposition testimony elicited from Mr. Malamud in the ASTM Action will duplicate testimony
plaintiffs seek in the AERA Action, since the legal issues in both cases, including whether the
standards incorporated by reference into the law have the same non-copyright status as law,
whether posting the standards publicly violates copyright law, and whether Public Resource’s
actions constitute fair use, are substantially identical. Whatever factual differences exist among
the two sets of plaintiffs are relatively immaterial when one considers that the AERA Plaintiffs
are no more different from the ASTM plaintiffs than any of the ASTM plaintiffs is from the
other ASTM plaintiffs. Moreover, requiring Mr. Malamud to appear for deposition in the ASTM
Action before this Court decides the consolidation motion would undercut some efficiency gains
Public Resource hopes to achieve through consolidation.
In addition, allowing the ASTM Plaintiffs’ depositions of Mr. Malamud to go forward
without a ruling on the consolidation motion would create an unfair advantage for all plaintiffs.
If the AERA Plaintiffs depose Mr. Malamud at a later date, they would have the added benefit of
using Mr. Malamud’s deposition testimony from the ASTM Plaintiffs’ case to craft additional
questions for their own depositions. Indeed, the AERA Plaintiffs have sought “all transcripts and
exhibits from any depositions taken in the ASTM Case” and will no doubt request copies of Mr.
Malamud’s deposition transcript. Bridges Decl. ¶ 2, Ex. A (AERA Plaintiffs’ RFP No. 13). The
AERA Plaintiffs would, in effect, be able to use all four days of Mr. Malamud’s deposition in
their case: two days of deposition testimony from the ASTM Action, and two additional days
from their own deposition of Mr. Malamud. Moreover, the ASTM Plaintiffs could take
advantage by extending their own reach into the AERA case and coordinating additional
questioning by AERA for the ASTM Plaintiffs’ benefit in the AERA depositions. And just as

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AERA appears poised to use the ASTM Plaintiffs’ depositions in its case, the ASTM Plaintiffs
could do the same with the AERA Plaintiffs’ depositions of Mr. Malamud. The net result is that
all plaintiffs in both cases could coordinate to have four days of deposition of the same
individual available to them. The Court should not allow the plaintiffs a de facto extension on
Mr. Malamud’s deposition time.
Finally, staying Mr. Malamud’s deposition until there has been a ruling on the
Consolidation Motion would not prejudice the ASTM Plaintiffs. The ASTM Plaintiffs
intervened in the AERA Action for purposes of opposing the Consolidation Motion,2 and they
have taken that opportunity to protect their own interests. Thus the only prejudice they would
suffer is a few weeks’ delay in taking Mr. Malamud’s deposition. That harm is small by
comparison to the certainty of proceeding with the benefit of a ruling on the Consolidation
Motion. Cf. Mitchell v. Yates, 402 F. Supp. 2d 222, 226 n.1 (D.D.C. 2005) (three-week delay in
filing motion to dismiss not prejudicial); Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-cv00904, 2008 WL 545018, at *1 (S.D. Ohio Feb. 25, 2008) (two-month delay in answering
complaint did not prejudice opposing party).
CONCLUSION
For all these reasons, Public Resource respectfully requests that the Court issue a
protective order staying the depositions of Public Resource and Carl Malamud until the Court
has decided the pending motion to consolidate for purposes of discovery. Because the notices
call for the depositions to occur on February 26 and 27, 2015, Public Resource respectfully
requests expedited treatment of this motion.

2

See Intervenors’ Opposition to Defendant-Counterclaimant Public.Resource.Org, Inc.’s Motion
to Consolidate for the Purposes of Discovery, Am. Educ. Research Ass’n, Inc. v.
Public.Resource.Org, Inc., No. 1:14-cv-00857-TSC-DAR, Dkt. No. 39 (Feb. 17, 2015).
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Dated: February 20, 2015

Respectfully submitted,
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
[e-mail]
Kathleen Lu (pro hac vice)
[e-mail]
Matthew B. Becker (pro hac vice)
[e-mail]
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
David Halperin (D.C. Bar No. 426078)
[e-mail]
1530 P Street NW
Washington, DC 20005
Telephone: [phone]
Mitchell L. Stoltz (D.C. Bar No. 978149)
[e-mail]
Corynne McSherry (pro hac vice)
[e-mail]
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant-Counterclaimant
Public.Resource.Org, Inc.

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